EN BANC

[G.R. No. 149666. December 19, 2003.]

SANGCAD S. BAO, petitioner, vs. COMMISSION ON

ELECTIONS, ATTY. RAY SUMALIPAO, COL. FELIX CASTRO,
JR., MUNICIPAL BOARD OF CANVASSERS OF BUTIG, LANAO
DEL SUR, DIMNATANG L. PANSAR, GORIGAO LANGCO, and
RASMIA U. SALIC ROMATO, respondents.

Francisco B. Sibayan for petitioner.

The Solicitor General for public respondents.

Superman A. Usop for private respondent D. Pansar.

DECISION

CARPIO MORALES, J : p

Petitioner Sangcad S. Bao sought re-election as mayor of Butig, Lanao

del Sur in the May 14, 2001 elections.
Aside from petitioner, the other candidates for mayor were Gorigao
Langco (Langco), Dimnatang L. Pansar (Pansar), and Rasmia U. Salic Romato
(Romato).
On May 25, 2001, petitioner filed before the COMELEC a "Very Urgent
Petition for Suspension of Counting of Votes by [the] B[oard of] E[lection]
I[nspectors], Canvass of Election Returns and Proclamation of Winners by
[the Municipal Board of Canvassers], and Declaration of Failure of Election in
Butig, Lanao del Sur," 1 naming Pansar, COMELEC Provincial Election
Supervisor Atty. Ray Sumalipao, and "COMELEC Deputy" Col. Felix Castro, Jr.
as respondents. The petition, which was docketed as SPA Case No. 01-336,
alleged that:

1. Â he requested Acting Election Officer Taha Casidar (Casidar) to

adopt the Project of Precincts with six (6) clustered voting centers
which he (petitioner) recommended, after consultation with
political parties, but over his (petitioner's) vehement opposition,
"Military COMELEC Deputy" Col. Felix Castro, Jr. disregarded the
plan without consulting both parties and the voters concerned;

2. Â in Precincts 1A-13A, Philippine National Police personnel

bearing high-powered firearms were seen escorting persons who
are not voters therein;

3. Â in Precincts 9A-10A, ballot boxes were missing during the

period of casting of votes;
 4. Â in Precincts 14A-15A, the wife of vice-mayoralty candidate
Pundaracab Ander forcibly took possession of the Book of Voters
and acted as Board of Election Inspectors and conducted the
voting by herself;

5. Â in Precincts 20A-27A and 46A-49A, the casting of votes was

stopped early because non-registrants and flying voters insisted
on voting, thus causing fighting and shooting among voters;

6. Â in Precincts 28A-29A, all the registered voters were not able to

cast their votes because the ballot boxes were brought to the
second floor of the school building and when the boxes were
brought down, the ballots and the Book of Voters were already
filled up and thumbmarked by non-voters;

7. Â in Precincts 1A-21A and 42A-43A, voting was closed at 3:30

p.m., but was illegally reopened; and

8. Â in Precincts 64A-65A, official ballots issued to voters were

forcibly filled up by one person.

Petitioner later filed on May 29, 2001 an "Additional Submission" 2

containing Casidar's "Narrative Report on the Conduct of [the] May 14, 2001
National and Local Elections in the Municipality of Butig, Lanao del Sur" 3
reading verbatim :
xxx xxx xxx

1. Â Per my instruction, the BEIs immediately started the election.

2. Â while the election was going on, at around 2 pm, several

bombings occurred almost in the area where the election was
held which caused commotion.

3. Â due to the incident and fear, the BEIs assigned in some other
precincts locked their ballot boxes and brought them to the
Municipal Hall while others continued the casting of votes [until]
the last hour.

4. Â . . . the electors and some other candidates were forcing and/or

convincing me to open the ballot boxes brought to the Municipal
Hall to continue the election which I refused as it was already too
late.

5. Â . . . due to intimidation and force shown or displayed by some

of the supporters and candidates themselves, I failed to decide
on time as it will endanger my life and other civilians in the area.

xxx xxx xxx

Â
On June 4, 2001, petitioner filed a "Very Urgent Motion to Defer
Canvass of Election Returns and Suspend Proclamation," 4 reiterating the
arguments in his previous petition.
On June 8, 2001, Langco (petitioner-intervenor), filed a petition-in-
intervention 5 adopting the allegations of petitioner and further alleging the
occurrence of other irregularities during the conduct of the elections, to wit:

1. Â watchers were not allowed to escort the ballot boxes and

witness the distribution of ballots;

2. Â a member of the Philippine Army was putting inside the ballot

box official ballots already filled up;

3. Â around 11:20 a.m., there were simultaneous explosions causing

the voters to scamper away which resulted to low voter turn-out;

4. Â the casting of votes was stopped at 1:30 p.m.;

5. Â the clustering made by the COMELEC based on the convenience

and safety of the voters was not followed;

6. Â the casting of votes was done in public as there were no voting

booths;

7. Â there was illegal transfer of polling places;

8. Â there was massive substitution of voters;

9. Â there was no justification for the military to serve in the

election;

10. Â the casting of votes in Precincts 1A-17A, 28A-32A and 59A-69A

was closed around 2:30 p.m. but was again reopened until
around 6:00 p.m.; and

11. Â the counting of votes was manned by Philippine Army soldiers

known to favor mayoralty candidate Pansar.

The COMELEC En Banc, without giving due course to the petition and
the petition-in-intervention, resolved on June 14, 2001:

1. Â to admit the Petition-in-Intervention filed by Langco on June 8,

2001;

2. Â to direct the Municipal Board of Canvassers of Butig to hold in

abeyance the proclamation of the respondent until lifted by the
Commission; CcSEIH

3. Â to direct the Clerk of the Commission to issue summons

requiring the respondents to file their answers to the petition and
petition-in-intervention and to set for hearing the instant case
immediately in order to hear from the parties and determine
whether the suspension will stay or has to be lifted; and

4. Â to direct the Deputy Executive Director for Operations to

implement this order with dispatch. 6

The COMELEC En Banc conducted a hearing on June 28, 2001 during

which all the parties were represented by counsels, after which it issued the
following order, quoted verbatim :

At today's hearing parties were respectively represented by

counsels.

Counsel for intervenor-oppositor Rashmina Salic [Ro]mat[o]

manifested that they filed a petition in intervention in this case as his
client was not impleaded although was proclaimed also as mayor.

Counsel for respondent Dimnatang L. Pansar manifested that his

client the impleaded respondent who was also proclaimed did not
receive any summons in this case.

Considering the foregoing, the motion to intervene is granted.

Respondents are hereby given three (3) days from today to file answer,
after which this case shall be deemed submitted for resolution. 7

As noted in the above-quoted June 28, 2001 Resolution of the

COMELEC En Banc, Romato who had in the meantime been proclaimed (on
June 10, 2001) 8 as mayor, as was Pansar (on June 16, 2001), 9 manifested
that he filed a petition-in-intervention.
By the questioned Resolution of August 13, 2001, the COMELEC En
B a n c dismissed the petition and Langco's petition-in-intervention, the
dispositive portion of which reads:

WHEREFORE, premises considered, the Very Urgent Petition and

Petition in Intervention are DISMISSED for LACK OF MERIT.

The Very Urgent Motion to Defer Canvass of Election Returns and

Suspend Proclamation is likewise DENIED for the same reason.

Hence, the present petition for certiorari under Rule 64 of the 1997
Revised Rules of Court raising the issue of:

WHETHER OR NOT RESPONDENT COMMISSION ON ELECTIONS

ILLEGALLY OR ARBITRARILY RESOLVED TO DENY THE PETITION OF BAO
AND INTERVENOR LANGCO AND ROMATO, THAT THEIR 'ALLEGATIONS'
AND 'EVIDENCES' ATTACHED TO THEIR PLEADINGS ARE INSUFFICIENT
TO DECLARE FAILURE OF ELECTION. 10 (Underscoring omitted)

Petitioner contends that SPA No. 01-336 being a contentious case, the
COMELEC acts as a quasi-judicial tribunal and thus falls under the term
"court"; that the questioned resolution failed to express clearly and distinctly
the facts and the law on which it is based in contravention of Article VII of
the 1987 Constitution; 11 that contrary to the findings of the COMELEC, the
two (2) conditions set forth in Mitmug v. COMELEC 12 to declare a failure of
election was present in the instant case; and that the serious and massive
election irregularities in thirty out of forty precincts in Butig were more than
sufficient to affect the election results as they disenfranchised more than
70% of the registered voters. 13
Petitioner further contends that even if there was voting, the election
nevertheless resulted in failure to elect; 14 that the COMELEC erred in not
giving credence to the official Narrative Report of Casidar which contained
facts affecting the validity of the elections; 15 and that in failing to conduct
summary hearing for the reception of evidence, the COMELEC violated the
Omnibus Election Code and its own rules. 16
The issue in the main is whether the COMELEC committed grave abuse
of discretion in not declaring a failure of election.
This Court holds in the negative.
Section 6 of the Omnibus Election Code provides:

Section 6. Â Failure of Election. — If, on account of force

majeure, violence, terrorism, fraud, or other analogous causes the
election in any polling place has not been held on the date fixed, or
had been suspended before the hour fixed by law for the closing of the
voting, or after the voting and during the preparation and the
transmission of the election returns or in the custody or canvass
thereof, such election results in failure to elect, and in any of such
cases the failure or suspension of election would affect the result of the
election, the Commission shall, on the basis of a verified petition by
any interested party and after due notice and hearing, call for the
holding or continuation of the election not held, suspended or which
resulted in a failure to elect on a date reasonably close to the date of
the election not held, suspended or which resulted in a failure to elect
but not later than thirty days after the cessation of the cause of such
postponement or suspension of the election or failure to elect.

In Mitmug v. COMELEC, 17 this Court held that before the COMELEC can
act on a verified petition seeking to declare a failure of election, two (2)
conditions must concur: first, no voting has taken place in the precinct or
precincts on the date fixed by law or, even if there was voting, the election
nevertheless results in failure to elect; and second, the votes not cast would
affect the result of the election.
And in Typoco v. COMELEC, 18 this Court held:

Clearly then, there are only three instances where a failure of

election may be declared, namely: (a) the election in any polling place
has not been held on the date fixed on account of force majeure,
violence, terrorism, fraud, or other analogous causes; (b) the election
in any polling place had been suspended before the hour fixed by law
for the closing of the voting on account of force majeure, violence,
terrorism, fraud, or other analogous causes; (c) after the voting and
during the preparation and transmission of the election returns or in
the custody or canvass thereof, such election results in failure to elect
on account of force majeure, violence, terrorism, fraud, or other
analogous causes. In all instances there must have been a failure to
elect; this is obvious in the first scenario, where the election was not
held and second where the election was suspended. As to the third
scenario, the preparation and transmission of election returns which
give rise to the consequence of failure to elect must as aforesaid be
literally interpreted to mean that nobody emerged as winner.

In the present case, the allegations-bases of both the petition and

Langco's petition-in-intervention before the COMELEC are mostly grounds for
an election contest, not for a declaration of failure of election. While there
are allegations which may be grounds for failure of election, they are
supported by mere affidavits and the narrative report of the election officer.
That petitioner and petitioner-intervenor were not able to present substantial
evidence in support of their allegations should not be blamed on the
COMELEC, for during the June 28, 2001 hearing, Atty. Jose Ventura Aspiras,
collaborating counsel for petitioner, on being informed that respondent
Pansar had not yet received the summons to necessitate the resetting of the
hearing, made a "request," which was granted, that said respondent should
just file "an answer or memorandum to abbreviate the proceedings," and did
not object to the COMELEC's pronouncement to consider the petition
submitted for resolution after the filing of the answer or memorandum.
xxx xxx xxx

Comm. Javier

 In the meantime, we will have to reset this case because it

appears that the service of summons has not been done into the
respondent, so, it would appear that this Commission would not
have any jurisdiction yet because you appeared here already,
your appearance, you are submitting to the jurisdiction of the
Commission, so, in that case, we will request the petitioner to
submit a copy to the respondent and give him time to answer,
three (3) days to answer, okay.

Atty. Aspiras

 May we just request that what we (sic) file would be an

answer/memorandum to abbreviate the proceedings .

Comm. Javier

 Okay, answer together with memorandum in three (3) days, you

have to submit simultaneous memorandum.

Atty. Aspiras

 Yes, your Honor.

Comm. Javier

 Three (3) days from today, we will consider this

submitted for resolution.

Atty. Aspiras

 Yes, your Honor, we will furnish already after this hearing, copy
of the amended petition to the respondent your Honor.

Comm. Javier
 Â Okay, next case.

xxx xxx xxx 19 (Emphasis and underscoring supplied)

Under the circumstances, petitioner and petitioner-intervenor are deemed to
have waived their right to present further evidence to substantiate their
petition.
Since, as the following portion of the assailed COMELEC resolution
states, both petitioner and petitioner-intervenor failed to discharge the
burden of proving their allegations, the COMELEC did not commit grave
abuse of discretion:

Thus, there can be no other recourse for this Commission than to

deny the petition. General allegations, without sufficient evidentiary
support, do not warrant a declaration of a failure of elections. Election
results are the expression of the will of the people whose welfare and
interests must immediately be served by those upon whom the people
have placed their trust. Peripherally but not trivially, elections need be
consummated with dispatch because the losers or even those just
lagging behind in the counting, more often than not, file all kinds of
protests and complaints and objections that delay the election process
and threaten to deny the people their representation in government. 20

WHEREFORE, the instant petition is DISMISSED for lack of merit.

SO ORDERED. AHEDaI

Davide, Jr., C .J ., Puno, Vitug, Panganiban, Quisumbing, Ynares-

Santiago, Sandoval-Gutierrez, Carpio, Austria-Martinez, Corona, Callejo, Sr.,
Azcuna, and Tinga, JJ ., concur.
Â
Footnotes

1. Â Rollo at 48-57.

2. Â Id. at 83-86.

3. Â Id. at 87-88.

4. Â Id. at 34-39.

5. Â Id. at 95-101.

6. Â COMELEC Records at 76-77.

7. Â Id. at 93-94.

8. Â Motion for Leave to Intervene, COMELEC Records at 121-123.

9. Â Answer, id . at 107-115.

10. Â Rollo at 21.

11. Â Id. at 21.

12. Â 230 SCRA 54 (1994).

13. Â Rollo at 26.

14. Â Id. at 26.

15. Â Id. at 28.

16. Â Id. at 33-34.

17. Â Supra.

18. Â 319 SCRA 498 (1999) citing Canicosa v. COMELEC, 282 SCRA 512 (1997);
Vide Banaga v. COMELEC, 336 SCRA 701 (2000) and Pasandalan v.
COMELEC, G.R. No. 150312, July 18, 2002.

19. Â Transcript of Stenographic Notes, June 28, 2001 at 9-10.

20. Â Rollo at 179 citing Loong v. COMELEC , 257 SCRA 2 (1996).